Court strikes out 'offensive' and 'annoy' from Communications and Multimedia Act

The Court of Appeal in Putrajaya has unanimously ruled that the words "offensive" and "annoy" in Section 233 of the Communications and Multimedia Act (CMA) 1998, were unconstitutional, The Star reports. 

Chaired by Federal Court judge Justice Lee Swee Seng, a three-judge panel held that the two words constituting to an offence, were inconsistent with Article 10 of the Federal Constitution, hence deeming it void. 

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Justice Lee had said, as quoted by the Star, that this was not a permissible restriction to freedom of expression. In essence, according to the judge, the charge of offending and annoying a third party could not be construed as going against public order.

He also warned that without a clear standard of what counts as “offensive,” Section 233 could force every speech to be “sanitised,” giving authorities broad power to police online discourse and creating a chilling effect on free expression guaranteed under Article 10 of the Constitution. He added that false remarks can already be prosecuted under Section 233 of the CMA if made with intent to abuse, threaten, or harass, making broader restrictions unnecessary.

The judgment arose from an appeal by activist Heidy Quah, from the NGO Refuge for the Refugees, who filed an originating summons to declare the two words as null and void, as it was inconsistent with the Constitution. 

In 2021, Quah had claimed trial to a charge given in the KL sessions court over a Facebook post highlighting the alleged mistreatment of refugees at immigration detention centres. The rights activist had shared about the experience of a detained woman with her newborn baby, exposing conditions such as alleged abuse, unsafe and unhygienic conditions for women and children in the centres.  

Quah was summoned for police questioning in 2020, and she was charged about a year after she published the Facebook post. Her initial civil action filed over the words "offensive" and "annoy" in the CMA was dismissed by the High Court in 2023, prompting her appeal. 

According to The Vibes, the judgement at the Court of Appeal came as the CMA was amended in December last year. The changes added the words "grossly offensive" in constituting an offence, and came into effect this February.

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